Summary
noting that the actual damages alleged “must be pecuniary in nature” and the plaintiff's allegations of damage to his reputation and added cost of obtaining credit were “too conclusory to demonstrate that [the plaintiff] has sufficiently pled pecuniary damages”
Summary of this case from Helmus v. Chase Home Finance, LLCOpinion
No. C 12-0496 PJH
04-19-2012
CLAYTON K. SHUM, Plaintiff, v. EXPERIAN INFORMATION SOLUTIONS, et. al. Defendants.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
Defendant's motion to dismiss the complaint came on for hearing before this court on May 18, 2012. Plaintiff Clayton K. Shum ("Shum") appeared through his counsel, Anita Steburg. Defendant JPMorgan Chase Bank, N.A. ("Chase"), appeared through its counsel, Goli Mahdavi. Having read the parties' papers and carefully considered both parties' oral arguments and the relevant legal authority, the court hereby GRANTS Chase's motion to dismiss, for the reasons stated at the hearing, and summarized as follows.
Although Shum's complaint named several defendants, including Chase, Chase was the only defendant to move to dismiss Shum's complaint.
Shum agrees that his only cause of action against Chase arises under the Real Estate Settlement Procedures Act (the "RESPA"). See Complaint, ¶¶ 55-58. Specifically, Shum alleges that Chase failed to acknowledge receipt of his qualified written request ("QWR"), failed to respond to the QWR, and failed to identify the owner of his mortgage loan from Chase. Id. Chase seeks dismissal of Shum's claim on grounds that Shum has insufficiently pled that his letter meets the statutory requirements of a QWR and that he has suffered pecuniary damages as a result of Chase's failure to respond to the QWR.
A QWR is a "written correspondence" that requests information relating to the servicing of the loan. 12 U.S.C. § 2605(e)(1)(A)-(B). Specifically, it must "include[] a statement of the reasons for the belief of the borrower, to the extent applicable, that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower." 12 U.S.C. § 2605(e)(1)(B)(ii) (emphasis added).
Loan servicers of federally related mortgage loans who receive a QWR from a borrower must acknowledge receipt of the QWR within five days. 12 U.S.C. § 2605(e)(1)(A). Within thirty days of receiving the QWR, the loan servicer must respond by making appropriate corrections to the borrower's account and after an investigation, by providing the borrower with a written explanation or clarification. 12 U.S.C. § 2605(e)(2). If the servicer fails to respond to a QWR within the designated times, the servicer is liable to the borrower for actual damages resulting from the failure and any additional damages in the case of a "pattern or practice of noncompliance" with RESPA. 12 U.S.C. § 2605(f). The actual damages must be pecuniary in nature. Molina v. Wash. Mut. Bank, 2010 WL 431439 at *7 (S.D. Cal. 2010); Reynoso v. Paul Fin., LLC, 2009 WL 3833298 at *7 (N.D. Cal. 2009).
Here, Shum has sufficiently pled that his letter, mailed on September 15, 2011, qualifies as a QWR. In the letter, Shum requested identification of all parties with an interest in his mortgage loan from Chase and an accounting of all payments and credits in order to verify the information Chase is providing to the credit reporting agencies. This request satisfies the alternative requirement that the QWR "provide sufficient detail to the servicer regarding other information sought by the borrower." 12 U.S.C. § 2605(e)(1)(B)(ii).
Although Shum has sufficiently pled that he sent a QWR to Chase, he fails to sufficiently plead that he suffered pecuniary damages resulting from Chase's failure to respond to the QWR. In the complaint, Shum merely requests compensatory and punitive damages, attorney's fees and costs, pre-judgment and post-judgment interest at the legal rate, and other relief the court deems just and proper. Complaint at 10:18-21. In his opposition, Shum alleges that his damages include the damage to his reputation, his reduced capacity to obtain credit, and the added cost of obtaining credit. See Opposition at 4:5-8. Such allegations are too conclusory to demonstrate that Shum has sufficiently pled pecuniary damages.
Accordingly, for the foregoing reasons, Chase's motion to dismiss is GRANTED. As discussed at the hearing, the court grants Shum leave to amend the fourth cause of action only. In order to support a RESPA claim, Shum must properly allege that he suffered pecuniary damages. As such, Shum is granted a period of twenty-eight days to file an amended complaint. Chase has twenty-one days to file a response.
IT IS SO ORDERED.
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PHYLLIS J. HAMILTON
United States District Judge